State ex rel. Counsel for Dis. v. Barfield , 305 Neb. 79 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Jackie L. Barfield, respondent.
___ N.W.2d ___
Filed February 21, 2020. No. S-19-204.
1. Disciplinary Proceedings. When no exceptions to the referee’s find-
ings of fact are filed by either party in a disciplinary proceeding, the
Nebraska Supreme Court may, at its discretion, adopt the findings of the
referee as final and conclusive.
2. ____. Because attorney discipline cases are original proceedings before
the Nebraska Supreme Court, the court reviews a referee’s recommenda-
tions de novo on the record, reaching a conclusion independent of the
referee’s findings.
3. ____. Attorneys licensed to practice law in the State of Nebraska
agree to operate under the supervision of the office of the Counsel for
Discipline.
4. ____. A license to practice law confers no vested right, but is a condi-
tional privilege, revocable for cause.
5. ____. Violation of any of the ethical standards relating to the practice
of law or any conduct of an attorney in his or her professional capacity
which tends to bring reproach on the courts or the legal profession con-
stitutes grounds for suspension or disbarment.
6. ____. The goal of attorney discipline proceedings is not as much punish-
ment as a determination of whether it is in the public interest to allow an
attorney to keep practicing law.
7. ____. Providing for the protection of the public requires the imposition
of an adequate sanction to maintain public confidence in the bar.
8. ____. To determine whether and to what extent discipline should be
imposed in an attorney discipline proceeding, the Nebraska Supreme
Court considers the following factors: (1) the nature of the offense, (2)
the need for deterring others, (3) the maintenance of the reputation of
the bar as a whole, (4) the protection of the public, (5) the attitude of the
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
respondent generally, and (6) the respondent’s present or future fitness
to continue in the practice of law.
9. ____. Each attorney discipline case must be evaluated in light of its
particular facts and circumstances.
10. ____. For purposes of determining the proper discipline of an attor-
ney, the Nebraska Supreme Court considers the attorney’s actions both
underlying the events of the case and throughout the proceeding, as well
as any aggravating or mitigating factors.
11. ____. In attorney discipline cases, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior simi-
lar cases.
12. ____. Neither good faith nor ignorance of the rules prohibiting com-
mingling client and personal funds provides a defense to a disciplinary
charge that an attorney violated the rules against commingling.
13. ____. The Nebraska Supreme Court considers commingling of client
funds with an attorney’s own funds to be a matter of gravest concern in
reviewing claims of lawyer misconduct.
14. ____. Even when the client suffers no loss, an attorney’s commingling
of client funds with personal funds is not a trivial or technical rule
violation.
15. ____. Because it is such a dangerous and unfortunately common basis
for disciplinary action, there is a continuing need to send a clear and
strong message deterring attorneys from commingling client and per-
sonal funds and from using client trust accounts as personal check-
ing accounts.
16. Disciplinary Proceedings: Evidence. In an attorney discipline case, the
burden is on the respondent to provide evidence to be considered for
mitigation of the formal charges.
17. Disciplinary Proceedings. Continuing commitment to the legal pro-
fession and the community is a mitigating factor in an attorney disci-
pline case.
18. ____. Having no prior complaints is a mitigating factor in an attorney
discipline case.
19. ____. An attorney’s poor accounting practices are neither an excuse nor
a mitigating circumstance in reference to commingled or misappropri-
ated funds.
20. ____. Because cumulative acts of attorney misconduct are distinguish-
able from isolated incidents, they justify more serious sanctions.
21. Disciplinary Proceedings: Presumptions. Mitigating factors may over-
come the presumption of disbarment in misappropriation and commin-
gling cases only where they are extraordinary and, when aggravating
circumstances are present, they substantially outweigh those aggravat-
ing circumstances.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
Original action. Judgment of disbarment.
Julie L. Agena, Assistant Counsel for Discipline, for relator.
James Walter Crampton for respondent.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
The respondent appeals from the report and recommendation
of the referee in an attorney disciplinary action. The referee
recommended disbarment for violations of Neb. Ct. R. of Prof.
Cond. §§ 3-501.15 (safekeeping property) and 3-508.4 (rev.
2016) (misconduct) relating to the attorney’s commingling of
earned and unearned client payments and cash withdrawals
and checks written from her attorney trust account to pay for
business and personal expenses. The trust account also suf-
fered several overdrafts. The respondent argues that suspen-
sion rather than disbarment is the appropriate discipline for
her actions.
BACKGROUND
Jackie L. Barfield was admitted to the practice of law in
the State of Nebraska in 1993, and at all times relevant was
engaged in the practice of law in Omaha, Nebraska. Formal
charges against her were filed by the office of the Counsel for
Discipline of the Nebraska Supreme Court in February 2019.
The charges alleged that between October 2017 and April
2018, Barfield had written multiple personal checks and had
made multiple cash withdrawals out of her attorney trust
account. She had also paid insufficient-fund fees several times.
Barfield admitted to writing personal checks and taking cash
withdrawals from her attorney trust account, as well as having
insufficient funds in that account, since at least 2013. Barfield
was charged with violating §§ 3-501.15 (safekeeping property)
and 3-508.4 (misconduct). Barfield, in her answer, admitted to
the allegations.
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305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
In mitigation, Barfield pled that (1) any economic harm any
person may have suffered from her acts was “of very brief
duration,” (2) she has been providing services to economically
disadvantaged members of the public at lower-than-normal fees
throughout her career, (3) she is a minister and religious leader
providing “comfort and moral guidance to her small group of
followers generally beneficial to the social moral fabric of her
community,” and (4) she has no prior serious disciplinary com-
plaints except one related to an unpaid bill from a doctor, for
which she was privately reprimanded approximately 20 years
before. Pursuant to Barfield’s motion, judgment on the plead-
ings was granted as to the facts, under Neb. Ct. R. § 3-310(L)
(rev. 2014).
Neither party filed written exceptions to the referee’s report
that was issued after a hearing to determine the nature and
extent of the discipline to be imposed, considering any aggra-
vating and mitigating factors. The report set forth that Barfield
had been without a business account for approximately 5 years
and, since at least 2013, has been withdrawing cash and writ-
ing checks on her attorney trust account to pay for personal
and business expenses. Barfield has paid insufficient fund
charges since 2013 for at least 23 overdrafts on her attorney
trust account.
The record reflects that previously, in May 2000, the
Nebraska State Bar Association had privately reprimanded
Barfield for failing to deposit into her trust account a check
issued to honor a medical lien in relation to her client’s settle-
ment and for failing to promptly disburse a portion of the set-
tlement funds designated for medical providers. The Counsel
for Discipline had found in the private reprimand that Barfield
violated provisions of the Code of Professional Responsibility
concerning general misconduct, neglect, and preservation of
the identity of client funds.1
1
Canon 1, DR 1-102(A)(1); Canon 6, DR 6-101(A)(3); and Canon 9, DR
9-102(A)(1)(2) and (B)(4), of the Code of Professional Responsibility.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
Barfield’s Testimony
Barfield testified at the disciplinary hearing. Barfield was
not permitted to offer any other evidence concerning mitiga-
tion, due to her failure to comply with discovery deadlines.
Barfield explained that her business account had been closed
approximately 5 years prior due to lack of funds. Rather than
opening another business account, she used her trust account
to pay business expenses. She did not open another business
account until recently.
Barfield testified that for the past 5 years she had worked
part time as a sole practitioner out of her daughter’s home. She
explained: “Well, the business expenses are home-related. And
I practice out of Bellevue, which is my daughter’s home, and
so it’s been difficult, and that’s one of the reasons that I put
things related to Barfield Law, I just put it in the trust account.”
She testified that she has had no support staff since she stopped
practicing out of a stand-alone building approximately 5 years
before the hearing.
Barfield testified that her retainers were generally small and
had been earned sometimes even before they were deposited
into the trust account. No client had ever complained about
how their funds were handled. When asked whether her com-
mingling and withdrawals had harmed her clients, she said:
Well, in reading some of the case law and — in my mind
I didn’t think it was, but in reading the case law, I under-
stand since this case has started that even, you know, if
you use it there’s a possibility and so, yes, under those
circumstances I do agree.
As for the overdrafts, Barfield explained that at least one of
the overdrafts was due to a client’s check bouncing—after she
had withdrawn the deposit by making a check out to herself.
Barfield noted that since 2014, she has had several health
concerns related to her knees and hips. She had been trying to
wind up her practice in Nebraska in order to live permanently
in Texas, where the weather was better for her health. But the
winding up was taking longer than she thought, and she was
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
traveling back and forth between a daughter’s home in Texas
and another daughter’s home in Nebraska. The traveling had
put an emotional strain on her, and she suffered from anxiety
and migraines. In fact, she had suffered from “anxiety and
everything” since she started practicing. Barfield testified that
she had taken antidepressants “over the years” and had been
prescribed medication for her anxiety.
With regard to the private reprimand approximately 20 years
before, Barfield explained that the settlement payment to her
client had been stopped due to an ongoing criminal matter in
which the FBI was involved. This stop payment, in conjunction
with her private practice being otherwise wound down after she
accepted a position at a university, “threw my whole account
off” and made it difficult for the doctor in question to contact
her. Barfield left her job at the university after approximately
1 year of employment there and, in 2000, after taking another
year to focus on her family and mental health, returned to pri-
vate practice.
Barfield asked for any sanction short of disbarment. She
stated that she now understood that she could not manage
going back and forth between Texas and Nebraska anymore
and would stay in Nebraska if allowed to continue to prac-
tice, stating:
[M]y intention is if I’m going to practice in Nebraska, I
have to live in Nebraska. And the going back and forth
is just too stressful. It’s causing me a lot of anxiety and
it puts you in the position of having to do more than you
can handle.
Barfield testified that she served lower-income clients with
the intention of giving back to her community. She explained,
“I believe I focus so much probably on trying to do the best
work for my clients, and I might have been hyper focused on
that than what was going on in my life.” Barfield testified that
she never wished to harm her clients and believed she could
properly manage a trust account in the future.
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305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
Referee’s Recommendation
The referee in his report noted that misuse of client trust
accounts, even without obvious misappropriation, harms the
reputation of the bar and that an appropriate sanction should
be imposed that will deter others from such conduct. Barfield’s
conduct, the referee found, had tarnished the reputation of
the bar.
The referee found that the duration and repetitive nature of
Barfield’s violations reflected negatively on Barfield’s future
fitness to practice law. Also, the referee considered Barfield’s
conduct to constitute both commingling and misappropriation
that caused harm to her clients, reasoning:
[Barfield] admittedly left earned fees in her trust account
without a clear accounting and separation until it was
impossible to determine what money belonged to her
and what belonged to her clients, thus commingling her
money with client money. Additionally, [Barfield’s] bank
records show numerous overdrafts in her attorney trust
account, which is clearly the misappropriation of cli-
ent funds.
After considering sanctions imposed in similar cases, the ref-
eree concluded that the nature of Barfield’s offenses “is of
the gravest concern to the legal profession and the Court has
consistently found these violations require disbarment, absent
mitigation.”
The referee found that Barfield had been cooperative
throughout the investigation and disciplinary proceedings,
which the referee considered a mitigating factor. The referee
agreed with Barfield’s counsel that Barfield’s actions of read-
ily admitting misconduct, acknowledging responsibility for her
actions, and acknowledging that her violations have harmed
the public reflected positively upon Barfield’s attitude and
character.
On the other hand, the referee stated that it appeared that
Barfield failed to grasp the seriousness of her violations. The
referee noted that Barfield had expressed that any economic
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305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
harm was only of very brief duration. The referee also found
that the lack of actual, or only minimal, harm was not a miti-
gating factor.
The referee also did not consider it as mitigating factors
that there is no record of complaints from clients, attorneys, or
courts against Barfield or that Barfield claimed to have modi-
fied her trust account practices, because she did so only after
receiving notice of the disciplinary investigation. Lastly, the
referee did not consider as mitigating any depression Barfield
may have experienced, since she did not present any medical
evidence that the depression was a direct and substantial con-
tributing factor for her misconduct.
The referee found as an aggravating factor that this was not
the first disciplinary action brought against Barfield concerning
her trust account. Furthermore, the referee noted that Barfield’s
current misuse of her trust account was not an isolated incident
but consisted of cumulative acts occurring over approximately
5 years.
The referee recommended disbarment with the following
condition should Barfield apply for reinstatement: “[Barfield]
should produce evidence satisfactory to the Court that she is fit
to practice law; and further that the Counsel for Discipline has
not been notified by the Court that [Barfield] has violated any
disciplinary rule during her disbarment.” The referee also rec-
ommended that Barfield be required to comply with the notifi-
cation requirements of Neb. Ct. R. § 3-316 (rev. 2014) and that
she be subject to punishment for contempt if she fails to do
so. Finally, the referee recommended that Barfield be directed
to pay costs and expenses in accordance with Neb. Rev. Stat.
§§ 7-114 and 7-115 (Reissue 2012) and § 3-310(P) and Neb.
Ct. R. § 3-323(B) within 60 days of any order imposing such
costs and expenses.
ASSIGNMENT OF ERROR
Barfield disagrees with the referee’s recommendation that
she should be disbarred as a sanction for her misconduct.
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305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
STANDARD OF REVIEW
[1] When no exceptions to the referee’s findings of fact are
filed by either party in a disciplinary proceeding, this court
may, at its discretion, adopt the findings of the referee as final
and conclusive.2
[2] Because attorney discipline cases are original proceed-
ings before this court, we review a referee’s recommendations
de novo on the record, reaching a conclusion independent of
the referee’s findings.3
ANALYSIS
Under § 3-310(L), we accept the findings of the referee as
final and conclusive. In addition, Barfield admitted the alle-
gations and, pursuant to Barfield’s motion, judgment on the
pleadings was granted. Barfield violated §§ 3-501.15 (safe-
keeping property) and 3-508.4 (misconduct). The only issue
left to consider is the appropriate sanction.
[3-5] Attorneys licensed to practice law in the State of
Nebraska agree to operate under the supervision of the office
of the Counsel for Discipline.4 A license to practice law con-
fers no vested right, but is a conditional privilege, revocable
for cause.5 Violation of any of the ethical standards relating
to the practice of law or any conduct of an attorney in his or
her professional capacity which tends to bring reproach on the
courts or the legal profession constitutes grounds for suspen-
sion or disbarment.6
[6,7] Under Neb. Ct. R. § 3-304, this court may impose
one or more of the following disciplinary sanctions: “(1)
Disbarment by the Court; or (2) Suspension by the Court; or
2
See § 3-310(L).
3
State ex rel. Counsel for Dis. v. Nimmer, 300 Neb. 906, 916 N.W.2d 732
(2018).
4
Id.
5
Id.
6
Id.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
(3) Probation by the Court in lieu of or subsequent to suspen-
sion, on such terms as the Court may designate; or (4) Censure
and reprimand by the Court; or (5) Temporary suspension by
the Court[.]” The goal of attorney discipline proceedings is
not as much punishment as a determination of whether it is in
the public interest to allow an attorney to keep practicing law.7
Providing for the protection of the public requires the imposi-
tion of an adequate sanction to maintain public confidence in
the bar.8
[8-11] To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, we
consider the following factors: (1) the nature of the offense,
(2) the need for deterring others, (3) the maintenance of the
reputation of the bar as a whole, (4) the protection of the pub-
lic, (5) the attitude of the respondent generally, and (6) the
respondent’s present or future fitness to continue in the prac-
tice of law.9 Each attorney discipline case must be evaluated in
light of its particular facts and circumstances.10 For purposes of
determining the proper discipline of an attorney, we consider
the attorney’s actions both underlying the events of the case
and throughout the proceeding, as well as any aggravating or
mitigating factors.11 Furthermore, the propriety of a sanction
must be considered with reference to the sanctions imposed in
prior similar cases.12
[12] Barfield’s use of her trust account as both a busi-
ness account and a personal account violated the rule against
commingling. Generally speaking, an attorney violates the
rule against commingling when the funds of the client are
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
Cite as 305 Neb. 79
intermingled with those of the attorney in such a way that
their separate identity is lost and they may be used by the
attorney for personal expenses or subjected to the claims of the
attorney’s creditors.13 Section 3-501.15(a) requires a lawyer to
“hold property of clients or third persons that is in a lawyer’s
possession in connection with a representation separate from
the lawyer’s own property.” Section 3-501.15(a) also requires
that client “[f]unds shall be kept in a separate account main-
tained in the state where the lawyer’s office is situated.” The
only exception is when the lawyer’s own funds are deposited
into a client trust account for the sole purpose of paying bank
service charges on that account, and the exception applies
only to deposits in the amount necessary for that purpose.14
Neither good faith nor ignorance of the rules prohibiting com-
mingling client and personal funds provides a defense to a
disciplinary charge that an attorney violated the rules against
commingling.15
[13,14] This court considers commingling of client funds
with an attorney’s own funds to be a matter of gravest con-
cern in reviewing claims of lawyer misconduct.16 The practice
involves the inherent danger of unforeseen circumstances jeop-
ardizing the safety of the client’s funds.17 Even when the client
suffers no loss, an attorney’s commingling of client funds with
personal funds is not a trivial or technical rule violation.18
[15] Because it is such a dangerous and unfortunately
common basis for disciplinary action, there is a continuing
need to send a clear and strong message deterring attorneys
from commingling client and personal funds and from using
13
Id.
14
§ 3-501.15(b).
15
State ex rel. Counsel for Dis. v. Nimmer, supra note 3.
16
Id.
17
See id.
18
Id.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
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client trust accounts as personal checking accounts.19
Commingling of client funds with personal funds, even when
it does not involve obvious misappropriation, harms the repu-
tation of the entire legal profession by undermining public
confidence and trust in attorneys, in the courts, and in the legal
system.20 Thus, we have repeatedly said that absent extraordi-
nary mitigating circumstances, disbarment is the appropriate
discipline in cases of misappropriation or commingling of
client funds.21
[16,17] The burden is on the respondent to provide evi-
dence to be considered for mitigation of the formal charges.
Cooperation and remorse during disciplinary proceedings are
mitigating factors,22 and it is undisputed that Barfield readily
admitted her misconduct, fully cooperated in the investigation,
acknowledged responsibility for her actions, and acknowl-
edged that her violations harmed the public. Furthermore,
Barfield testified that she provided legal services at a rea-
sonable cost to those who could not otherwise afford such
services. Continuing commitment to the legal profession and
the community is a mitigating factor in an attorney discipline
case,23 although we note that the record here is somewhat
limited as to the level of Barfield’s community involvement
throughout her career.
19
See id.
20
See id.
21
See id. See, also, State ex rel. Counsel for Dis. v. Thebarge, 289 Neb.
356, 854 N.W.2d 914 (2014); State ex rel. Counsel for Dis. v. Council,
289 Neb. 33, 853 N.W.2d 844 (2014); State ex rel. Counsel for Dis. v.
Crawford, 285 Neb. 321, 827 N.W.2d 214 (2013); State ex rel. Counsel
for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d 433 (2010); State ex rel.
NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000); State ex rel. NSBA
v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997); State ex rel. NSBA v.
Woodard, 249 Neb. 40, 541 N.W.2d 53 (1995).
22
See State ex rel. Counsel for Dis. v. Switzer, supra note 21.
23
See, State ex rel. Counsel for Dis. v. Trembly, 300 Neb. 195, 912 N.W.2d
764 (2018); State ex rel. Counsel for Dis. v. Council, supra note 21.
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
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[18] Barfield further represents as a mitigating factor that
there have never been any complaints against her for mishan-
dling clients’ cases or for failing to communicate or act. We
have recognized that having no prior complaints is a mitigat-
ing factor,24 but we have not considered mitigating the lack of
complaints in one area of conduct when there has been a past
complaint in another area. Barfield’s assertion ignores the prior
complaint that resulted in the private reprimand in 2000.
[19] Barfield does not argue that her mental or physical
health is a mitigating factor. Regarding depression, we have
said that in order to be a mitigating factor, the respondent must
show (1) medical evidence that he or she is affected by depres-
sion, (2) that the depression was a direct and substantial con-
tributing cause to the misconduct, and (3) that treatment of the
depression will substantially reduce the risk of further miscon-
duct.25 No such evidence was presented in this case. Neither,
rightly, does Barfield argue that her lack of staff and her living
situation, leading to her admittedly poor accounting practices,
presented mitigating factors. Poor accounting practices are
neither an excuse nor a mitigating circumstance in reference to
commingled or misappropriated funds.26
[20] We have considered prior reprimands as aggravators,27
and we agree with the referee that the conduct resulting in the
2000 reprimand is an aggravating factor in this case. Because
cumulative acts of attorney misconduct are distinguishable
from isolated incidents, they justify more serious sanctions.28
We have said that cumulative acts of misconduct can, and
often do, lead to disbarment.29 Barfield’s description of her
24
See State ex rel. Counsel for Dis. v. Pierson, 281 Neb. 673, 798 N.W.2d
580 (2011).
25
State ex rel. Counsel for Dis. v. Switzer, supra note 21.
26
See State ex rel. Counsel for Dis. v. Nimmer, supra note 3.
27
State ex rel. Counsel for Dis. v. Switzer, supra note 21.
28
Id.
29
See id.
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prior reprimand as a “misunderstanding of a debt owed to a
medical provider,” which occurred in the “distant past,” does
not remove it as an aggravating factor.30
Moreover, we consider aggravating the fact that the acts
of commingling presently at issue were both intentional and
routine over the course of several years. During that time,
Barfield used her trust account as both a business account
and a personal account, regularly withdrawing cash or paying
directly from the trust account her utilities, medical expenses,
and store purchases.
Barfield asserts that the level of moral turpitude reflected in
her commingling and misappropriation was dissimilar to other
cases in which we have imposed disbarment, in that she “used
her own funds from her trust account to pay day to day meager
expenses because she lost her other accounts to write checks
from,” adding that “[s]he did not steal anybody’s money.”31 But
we have repeatedly said that the fact that a client did not suffer
any financial loss does not excuse an attorney’s misappropria-
tion of client funds and does not provide a reason for imposing
a less severe sanction than disbarment.32 Further, Barfield fails
to point to a case where the prolonged use of a trust account
to pay meager, as opposed to lavish, expenses has led to a
lesser sanction.
In numerous cases, we have imposed disbarment for com-
mingling or misappropriation when the client did not suffer
a financial loss, even when there were mitigating factors.33
30
Brief for respondent at 7.
31
Id. at 9, 10.
32
See, State ex rel. Counsel for Dis. v. Crawford, supra note 21; State ex rel.
Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862 (2012).
33
See, e.g., State ex rel. Counsel for Dis. v. Nimmer, supra note 3; State ex
rel. NSBA v. Howze, supra note 21; State ex rel. NSBA v. Malcom, supra
note 21; State ex rel. NSBA v. Gridley, 249 Neb. 804, 545 N.W.2d 737
(1996); State ex rel. NSBA v. Woodard, supra note 21; State ex rel. NSBA
v. Veith, 238 Neb. 239, 470 N.W.2d 549 (1991).
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STATE EX REL. COUNSEL FOR DIS. v. BARFIELD
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In State ex rel. NSBA v. Veith,34 for example, the relator was
disbarred because of several instances over the course of 8
months of having a deficient balance in his client trust account,
which he subsequently attempted to remedy through personal
loans to cover the deficiencies. The deficiencies were the result
of transfers to his business account, and the transferred funds
were used for salaries, office expenses, an upgraded computer
system and law library, and a car.35
We noted case law from other jurisdictions holding that the
mere fact that an attorney’s trust account balance falls below
the amount deposited in and purportedly held in trust sup-
ports a finding of misappropriation, explaining that wrongful
or improper intent is not an element of misappropriation.36 We
found the proper sanction to be disbarment, despite no aggra-
vating factors and several mitigating factors, including being in
good standing and free from disciplinary complaint or penalty,
cooperation with the investigation, remorse, a good reputation
in the community, and the provision of many pro bono hours.37
We repeated that an attorney has a duty to keep separate and
properly account for client trust funds and explained that
an attorney may not use client trust funds to cover business
expenses.38 We also disapproved of a prior trend toward lighter
sanctions for such behavior, citing with approval another court’s
reasoning that imposing lighter discipline would “‘“stand out
like an invitation to the lawyer who is in financial difficulty for
one reason or another”’” and that “‘“[t]he profession and the
public suffer as a consequence.”’”39
34
State ex rel. NSBA v. Veith, supra note 33.
35
Id.
36
See id.
37
See id.
38
Id.
39
Id. at 252, 470 N.W.2d at 558, quoting The Florida Bar v. Breed, 378 So.
2d 783 (Fla. 1979).
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[21] We have generally imposed the lesser discipline of
suspension in cases of commingling or misappropriation only
where (1) it involved an isolated incident or a limited number
of incidents over a relatively isolated period of time, (2) there
were multiple significant mitigating factors, and (3) there were
no aggravating factors.40 Mitigating factors may overcome
the presumption of disbarment in misappropriation and com-
mingling cases only where they are extraordinary and, when
aggravating circumstances are present, they substantially out-
weigh those aggravating circumstances.41
Here, the mitigating factors of Barfield’s cooperation,
remorse, and efforts to provide affordable representation to
the community, while laudable, are insufficient both to rebut
the presumption of disbarment for commingling and to sub-
stantially outweigh the aggravating factors. This is not the
first time Barfield has been disciplined in relation to her
maintenance of her trust account, and she has for several years
engaged in a continuous pattern of commingling client funds.
Especially in light of the prior reprimand, Barfield’s pro-
longed and persistent violation of the rule against commingling
reflects a general failure to fully comprehend the serious nature
of such conduct.42
After balancing the relevant factors in comparison to other
cases, considering the need to protect the public, considering
the need to deter others, and considering the reputation of the
40
See, State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760 N.W.2d
928 (2008); State ex rel. Counsel of Dis. v. Wintroub, 267 Neb. 872, 678
N.W.2d 103 (2004); State ex rel. Counsel for Dis. v. Huston, 262 Neb. 481,
631 N.W.2d 913 (2001); State ex rel. NSBA v. Kratina, 260 Neb. 1030, 620
N.W.2d 748 (2001); State ex rel. NSBA v. Bruckner, 249 Neb. 361, 543
N.W.2d 451 (1996); State ex rel. NSBA v. Gleason, 248 Neb. 1003, 540
N.W.2d 359 (1995). But see State ex rel. Counsel for Dis. v. Sundvold, 287
Neb. 818, 844 N.W.2d 771 (2014).
41
See, State ex rel. Counsel for Dis. v. Nimmer, supra note 3; State ex rel.
NSBA v. Woodard, supra note 21.
42
See State ex rel. Counsel for Dis. v. Nimmer, supra note 3.
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bar as a whole, we agree with the referee that disbarment is the
only appropriate sanction.
CONCLUSION
Barfield violated §§ 3-501.15 (safekeeping property) and
3-508.4 (misconduct). It is the judgment of this court that
Barfield is disbarred from the practice of law in the State of
Nebraska, effective immediately. She is directed to comply
with § 3-316, and upon failure to do so, she shall be subject to
punishment for contempt.
Judgment of disbarment.
Heavican, C.J., not participating.